In the suit, filed in U.S. District Court in Washington, Smith asks the court to tell the president that “he must get proper authority from Congress, under the War Powers Resolution, to wage the war against ISIS.”
The Obama administration maintains that its authorization to fight the terrorist group comes from the 2001 Authorization for Use of Military Force, enacted by Congress after September 11, 2001, to fight Al Qaeda. The Islamic State began as an Al Qaeda splinter group.
In his lawsuit, Smith argues that this interpretation of the 2001 A.U.M.F. is unconstitutional and reckless. Moreover, he argues, the Obama administration has never made public any legal opinions written by the Office of Legal Counsel or the White House Counsel—“the institutional arbiters of executive legality”—justifying the military’s involvement in the fight against ISIS past the 60-day limit set by the War Powers Resolution, which ostensibly requires Congressional authorization.
In fact, the suit suggests, it is possible that OLC and the White House Counsel were never consulted at all. The White House deflected the McClatchy news service’s efforts last year to determine whether the president sought any written legal analysis from his counsel.
When it comes to Syria and Iraq, the administration “has clearly articulated our legal authorities in numerous public venues including White House press briefings, congressional testimonies and other forums,” said a White House official who is knowledgeable of the issue but wasn’t authorized to speak publicly as a matter of practice.
The president’s legal team “engaged with lawyers from key departments and agencies in discussions about the underlying authorities for those actions,” said the White House official.
According to the Associated Press, several members of Congress have advocated for a new authorization. The White House even sent a draft version to Capitol Hill. But nobody actually wants to vote on it.
“We’re in a terrible equilibrium where Congress doesn’t want to step up and play its part in this military campaign and so the president has basically gone forward and done what he thinks he needs to do,” Jack Goldsmith, a Harvard Law School professor critical of Obama’s interpretation of the 2001 A.U.M.F., told the New York Times. “It would be a lot better for everyone, including the president, if Congress got more involved.”